Kutiman's "Thru-You" Mashes Up Copyright Concepts

It's an ingenious mash-up cooked together by an Israeli musician who calls himself Kutiman. He spent weeks finding YouTube videos with sample-worthy bits he could splice together -- and not just as audio clips, but as video snippets playing alongside each other. It's a remarkable feat of after-the-fact conductorship.

It's also a situation that our copyright laws may not quite address fairly. Two things about this video seem inarguable:

1) Kutiman took a lot of other people's work without permission (though he does credit and link to them on his site);

2) The results are fabulously creative and amount to far more than the sum of their constituent bitstreams.

I don't know that the existence of this video demonstrates that all of our existing concepts of copyright have become obsolete, as Stanford law professor/author/copyright-reform advocate Larry Lessigsuggests. But it does point out that the longstanding "fair use" doctrine, which allows for the reuse of copyrighted material for some limited purposes, doesn't cover what happens when you build a new creative work entirely or largely out of snippets of other people's work -- a task that was painful or impossible before computers, but now within the reach of anybody with the right consumer-level software.

In some ways, Kutiman's video is an easier case to judge; you can hear enough of many of its samples to identify them. But what if somebody cooks up a work of art based on unidentifiable ingredients? Back in 2005, I watched Public Enemy producer Hank Shocklee and funk godfather George Clinton debate this issue at a conference in D.C. Shocklee played increasingly short snippets of a song and wondered how much he should pay for the right to use each sample, as commercial hip-hop artists routinely do. Eventually, only a fraction of a note was left. "Am I stealing your performance... or am I just looking for the sound?" Shocklee asked.

I suspect that at this point, some of you are saying "Rob, are you nuts?! You're a writer! Without copyright protection, your work could be stolen by anyone!"

My response to that would be that because I'm a writer, I want to have a little creative flexibility. I hate cliches and take great pride in being able to come up with a turn of phrase nobody else has used before, but sometimes I can make my point more effectively by reusing somebody else's three or four-word phrasing in some new way. I also don't want to have a squad of copyright lawyers clear everything I write before publication.

That may not be the easiest distinction to write into law. But how will trying to account for every single reuse of copyrighted material not lead us into a quagmire of unending litigation? How will that promote the progress of the arts?

Those of you who observed yesterday with a glass of Irish whiskey may be familiar with the term "the angels' share"-- the whiskey that evaporates out of the barrel while it ages. I will end this little essay with by borrowing the wonderful analogy I heard a few months ago from Old Dominion University media-studies professor Tim Anderson. There's always going to be some uncompensated, yet creative reuse of other people's work -- sampling, mash-ups, maybe something we haven't thought of yet -- and in a sane copyright system, you have to let that go as the angels' share.

Rob, gonna start by saying: I love the Kutiman vid and can't wait for the rest of the album to come out.

Having said that, there is a difference 'tween plagiarized text and "mashed-up" music: the latter does tend to drive (renewed?) interest in the original work. If I steal your text and don't attribute it, it's not driving readers to your site to find more of the same; it's not increasing sales of your books.

Case in point: Run DMC saved Aerosmith from the dustbin of history. It helps that Aerosmith embraced the Run's use of Walk This Way (the video was brilliant), but it certainly made people sit up and say, "hey, these guys still have something."

The idea that artists, musicians etc. create everything out of whole cloth is a fantasy. Artists are all too happy to indulge if it makes them look more godlike, but it's a lie.

If you're a fan of jazz, you know of "'Rhythm' changes" -- the 4-chord cycle from Gershwin's "I Got Rhythm": I-vi-ii-V. Hundreds of tunes over those chords. That continues through to rock/pop/folk today, where vi-IV-I-V is the new "Rhythm."

Nothing is totally original. It's what the artist does with borrowed themes that makes the difference.

I generated a logo containing the "C" used in copyright overlaid with a red-colored circle with a diagonal line "no", as in, "no copyright allowed", and I call it "Anti-Copyright". (Look at the copyright at the bottom of this column to the left of 2009 The WaPo Co and draw a diagonal through it) I copyrighted this term, just kidding, I invented the term in 1997 upon my return to the US after working, living and traveling abroad for a couple of years. I was struck by the rampant "corporateering" that had taken over seemingly all US creative output and "Peak-Copyright" was hit when Donald Trump attempted to copyright "You're Fired". Uhgg

Here's the problem: Copyright is intended to protect the investments of "Creators", however, in our "corporatized" culture copyright laws have been abused by lawyers and lawmakers to protect "Investors" instead. Walt Disney was a creator and he and his immediate family were lawfully protected, and rightfully so. But he's long gone and still immense dollars continue rolling into the coffers of people who never had a thing to do with his work... this is "Corporateering" and it's wrong.

There are many problems with this picture, but one of the biggest and most subtle is that (according to me) "Culture" is the cumulative appreciation and combination of people building on the work of other people who in turn are built upon. Copyright corporateering is having the effect of freezing creativity and thereby making Americans seem culturally flat, hollow, shallow and meaningless. The good news however, is that it was dynamic culture, the free-flow of all information that tore down the cold war wall, and now, it will be that same dynamic that will tear down the corporateer wall.

This is not the new conflict that Shepard Fairey and others seem to want us to think it is. Back in 1969, a Federal court in New York found that there had been infringement when a book about JFK assassination reproduced line drawings that had been copied from the Zapruder film. The people involved with the book knew that Time-Life owned the rights to the Zapruder images so they turned to the sketch copies as an alternative.

The Court decided: "Among other things, Zapruder selected the kind of camera (movie, not snapshot), the kind of film (color), the kind of lens (telephoto), the area in which the pictures were to be taken,..., and (after testing several sites) the spot on which the camera would be operated." What it boiled down to was that the book "has a number of what are called 'sketches' but which are in fact copies of parts of the Zapruder film."

Shepard Fairey is pretty much in the position of the people behind the sketches in that book. His consolation might be a recognition that courts do consider the intended market. In the Time-Life/"Six Seconds in Dallas" case, the court also decided:

"The book is not bought because it contained the Zapruder pictures [but] because of [the author]'s theory. There seems little, if any, injury to plaintiff.... There is no competition between plaintiff and defendant.

The Associated Press might argue that there would have been a conflicting market between the posters it could have marketed and those that Fairey did. Anyway, you can read a summary of the 1969 verdict at http://chart.copyrightdata.com/c13A.html#s077.

In the above, the web site made the hyperlink include the period that ended the sentence following the hyperlink. The period is not part of the hyperlink. Therefore, to read the story of the 1969 court decision that determined that drawings based on the Zapruder film was a copyright infringement (making allowances for this use), use this link:http://chart.copyrightdata.com/c13A.html#s077

channing1 wrote that "I was struck by the rampant 'corporateering' that had taken over seemingly all US creative output and 'Peak-Copyright' was hit when Donald Trump attempted to copyright 'You're Fired'. Uhgg"

Donald Trump tried to copyright "You're Fired"!!???! I don't think so. The law doesn't allow this, and the information that the Copyright Office wouldn't accept such an application is right out there.

Those brief pamphlets that the Copyright Office puts out for the general public give the highlights of the copyright laws, for that majority of we the public who wouldn't study the full law. Right there, in Information Circular 34, there's an unambiguous declaration that short phrases can't be copyrighted.

When copyright questions arise, many people think of giant companies and world famous musicians. Independent labels and artists are just as affected when someone copies their work. I don't know the solution for this, but I fear the day -- not far away -- when we will see and hear fewer artists because they will be unable to make a living from their work. I recognize the "overnight sensation" phenomenon of sudden computer generated fame, but when people feel they are entitled to take, and share, an artist's work, how will the artist survive? Constant touring is not always an answer. Anyone have any ideas?

Even though I considered it both unconscionable and probably unlawful, and Trump himself I'm sure knew it did not fit into existing law, seems people and institutions with immense capital concentrations have been successful in turning all kinds of unethical deeds into gold-digging laws. True he never got it, but hundreds of similar unconscionable deeds did become law and it's the same process that was behind the creation of Credit Default Swaps and 99 year copyright protection, now to include casual mention as the case in the article reveals.

Look up the work of Jonathan Coulton. (www.jonathancoulton.com) He's a pretty successful independent musician who makes his living through word of mouth and live concerts. He's basically the success story of creative commons (http://creativecommons.org/). I personally found out about him through a machima of his song "Code Monkey". If everyone on Youtube had licensed their music via Creative Commons, no copyright laws would have been broken.

With the Internet, smaller artists can reach a larger number of people and can make a living this way. It allows him to reach a population of people, who are willing to give him his money, as well as research where he can do his shows and attract the most number of people. In fact, the Internet makes an independent artist like Coulton possible.

""...how will the artist survive? Constant touring is not always an answer.Anyone have any ideas?

Yes! More and more music, video, movie, documentary and graphic artists are going direct-release by offering free online low-resolution copies and deliberately allowing them to go viral (if people like it). This is in everyone's interest. Links to purchase hard or high-resolution copies then are where the money comes in. As an example you can go to http://aperfectcircle.com and see some of their really great work for free, it's been up there for years now, if you like it, believe me, you're gonna want to buy the real thing. I think this is the future of creative work, authenticated online and generally distributed with the expectation of less upfront and per-copy income.

Written work is harder because easily controlled graphic/audio resolution doesn't matter, it's words and information. Assuring 100% attribution or royalties is simply impossible. There was a time when a "writer" was considered a "poor philosopher", quiet, introverted, and making an unreliable income and it didn't deter those writers because generally they sought to improve the human lot with their contributions. In spite of our obsession with making vast sums of money on every little thing, and in spite of some money-making high-powered bloggers out there, I think it is inevitable if we are to have a genuine and dynamic culture that writers are another creative case of accepting "the angels' share", so eloquently borrowed in the post above.

I was a little worried when nobody commented on this yesterday... glad to see some discussion has broken out. My comments:

@gyniahouse: I found it ironic that, in a posting in which you deny the possibility of *any* reuse of *anybody's* work, you use quotation marks. Your logic would make that form of punctuation illegal in most cases.

@washpostdh: Thanks for pointing me to that ruling. I wonder what that judge would think of Fairey's painting, which--unlike the drawings he ruled on--is not an attempt to copy the photo but an artistic reinterpretation of it.

@channing1: Copyrights aren't trademarks and trademarks aren't copyrights. (FYI, I used the phrase "you're fired" in the lede of my review of Firefox 1.0.) Trademarks grant you fewer rights, aren't issued automatically and require that you use and defend them.

@j24w: A mash-up requires taking and sharing some portion of somebody's work, but it's still not the same as taking all or most of somebody's work to share without putting any effort into it.

There's an angle that I alluded to in the post that's worth spelling out directly: Copyright is not an inalienable right. It's a right created for a functional purpose, to "promote the progress... of the useful arts." There are no absolutes to copyright, and we can debate changes to it in terms of what kind of artistic output they might yield--we the people told ourselves to do that when we wrote the Constitution.

""I also don't want to have a squad of copyright lawyers clear everything I write before publication.""

Isn't this the issue? That reuse, whether trademark or copyright, whether music, video, or writing, requires average artisans to hire an army of lawyers to avoid the overwhelming legal entanglements I refer to in my ANTI-COPYRIGHT post? And my post further down addressing j24w on how citizen-artisans can protect themselves? I think I was hoping to introduce the concept of the obvious rampant corporateering in the US having a diminishing effect on arts here as is evidenced by, for instance, the RIAA suits/results... no comment on this?

Many of us, probably tens of millions of us don't buy music the old-fashioned way anymore because of the corporate influence in radio, packaging, staging, commercial product-placements, unfair licensing and commissions for the actual artisans, etc.,. What I was trying to say above was that this issue of "mashing" #1, is forever an integral part of dynamic "culture" in all the arts, and #2, corporatizing the arts has had the unintended effect of diluting source materials.

Trademark and Copyright are BOTH abused today in similar fashion, but what about our culture, you know, the one requiring lawyers?